Opinion
Civil Action No. 05-cv-01112-MSK-PAC.
October 24, 2006
OPINION AND ORDER GRANTING, IN PART, MOTION FOR RECONSIDERATION
THIS MATTER comes before the Court pursuant to Petitioner's Motion In Objection To Court's Order Denying Petition and Applicant's Motion for Reconsideration (# 40, as supplemented # 41).
On August 7, 2006, this Court issued an Order (# 39) adopting the June 15, 2006 Recommendation (# 37) of the Magistrate Judge that the Petitioner's Petition be denied, and denying the Petition. The Court's Order was based, in part, on the Petitioner's failure to file timely Objections to the Recommendation under Fed.R.Civ.P. 72(b). On August 18, 2006, the Petitioner filed the instant Motion for Reconsideration, asserting that he had not received a copy of the Magistrate Judge's Recommendation. He contends that, on or about June 18 or 19, 2006, he received a mailing from the Court addressed to him, but the envelope contained materials from an unrelated case.
For the reasons stated in both a March 27, 2006 Order (# 32) and in the Court's August 7, 2006 Order denying a prior Motion for Reconsideration, see Docket # 39 at 1-2, the Court is doubtful that timely objections to the Recommendation by the Petitioner can obviate what appears to be a glaring failure to exhaust his claims in the state courts. Nevertheless, the Court accepts the Petitioner's assertion that he did not receive the Recommendation, and thus, did not receive an adequate opportunity to file objections.
Accordingly, the Petitioner's Motion for Reconsideration (# 40) is GRANTED IN PART, insofar as the Court will grant the Petitioner 10 days from the date of this Order to file Objections to the June 15, 2006 Recommendation. The Court's August 7, 2006 Order (# 39) dismissing the Petitioner shall be deemed held in abeyance pending the Petitioner's submission of timely Objections and the Court's disposition of those Objections.
Given that the Petitioner has been on notice of the existence of the Recommendation since August 18, 2006, more than 60 days ago, the Court assumes that he has been diligent in contacting the Clerk's Office to obtain a copy of it. Thus, granting the Petitioner 10 days within which to file objections merely restores the Petitioner to the position he would have been in had the Recommendation been properly served upon him in the first place.